Anthony Luis Garcia v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00395-CR
Anthony L. GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2003CR5447W
Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 4, 2004

DISMISSED

Pursuant to a plea-bargain agreement, Anthony L. Garcia pled nolo contendere to theft and was sentenced to five years imprisonment and a fine of $1,220.00 in accordance with the terms of his plea-bargain agreement. On April 5, 2004, the trial court signed a certification of defendant's right to appeal stating that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a)(2). After Garcia timely filed a notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this court. See id. 25.2(e). The clerk's record, which includes the trial court's rule 25.2(a)(2) certification, has been filed. See id. 25.2(d).

"In a plea bargain case ... a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal." Tex. R. App. P. 25.2(a)(2). The clerk's record, which contains a written plea bargain, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. 25.2(a)(2). The clerk's record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave its permission to appeal. The trial court's certification, therefore, appears to accurately reflect that this is a plea-bargain case and that Garcia does not have a right to appeal. We must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record." Id. 25.2(d).

In his notice of appeal, Garcia appears to recognize that rule 25.2 bars his appeal:

Defendant respectfully requests that this Honorable Court grant him permission to file this appeal. Defendant contends that the plea bargain which he entered in with the State was not made intelligently, knowingly and voluntarily, in that he was unaware of the consequences of such a plea.

We, however, have no power to review an appeal by a criminal defendant of issues associated with the voluntariness of a felony plea entered pursuant to an agreed punishment recommendation that the trial court followed. Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001).

We, therefore, warned Garcia that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he had the right to appeal was made part of the appellate record by July 14, 2004. See Tex. R. App. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.--San Antonio 2003, order). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to rule 25.2(d).

PER CURIAM

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